Appellant, a Navy Lieutenant Commander
with over 15 years of service at the time of trial,1/
was convicted at a general court-martial of raping a child; rape (after
the child reached age 16); forcible sodomy (2 specifications); taking indecent
liberties on a child (2 specifications); and committing indecent acts (2
specifications), all committed against his adopted daughter. He was sentenced
by members to confinement for life and partial forfeitures. The convening
authority approved the sentence, but suspended the forfeitures. On December
30, 1997, the Court of Criminal Appeals affirmed the findings and sentence.
47 MJ 707.

We agreed to consider two issues:

I

WHETHER THE MILITARY JUDGE ERRED BY INSTRUCTING
THE MEMBERS, OVER APPELLANT’S OBJECTION, THAT THEY SHOULD EVALUATE THE
DEGREE OF FORCE, THREAT OR INTIMIDATION NECESSARY FOR FINDINGS OF GUILT
OF RAPE OR FORCIBLE SODOMY DURING THE CHARGED PERIODS OF TIME IN LIGHT
OF THE VICTIM’S "TENDER YEARS."

II

WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT
RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL DURING SENTENCING.

FACTS

The victim in this case was appellant’s stepdaughter,
J.D. The charges arose following appellant’s arrest at a time J.D. had
already left home to attend college. Appellant tried to visit J.D. at her
university. She did not want to see him and called the university security
police. The police responded, and after finding a loaded weapon in appellant’s
vehicle, arrested him. They also found a number of nude Polaroid photographs
of his daughter, some of which captured appellant engaging in various sexual
acts with her. These photographs were the basis for the charges of committing
indecent acts, and taking indecent liberties with a minor, offenses to
which appellant pleaded guilty.

Issue I

Appellant asserts that the confusing nature
of the degree-of-force instructions with respect to the offenses of rape
and forcible sodomy permitted the members to dispense with finding actual
force. Such an instruction, combined with the "tender years" instruction,
is, according to appellant, wholly unjustified based on the evidence in
this case. Appellant’s victim, his adopted daughter, was not of tender
years, underdeveloped, or unintelligent; and appellant argues that the
victim’s testimony is of violence and threat rather than parental discipline
or authority. Appellant concludes that this error cannot be found harmless.

At trial, appellant moved that any reference
to the victim’s "tender years, mental capacity, knowledge, or mental development"
be removed from the proposed findings instructions. Nonetheless, the military
judge denied the motion, concluding that the proposed instruction "for
both the rape offenses and the sodomy offenses -- the forcible sodomy offenses
does properly include the paragraphs that the defense has pointed out,
to provide a full framework to the factfinders in this case, . . . based
upon the evidence that has been presented to this court." The judge gave
the instructions as he had initially proposed them in Appellate Exhibit
LVII. The text of the challenged instructions, as given to the members,
is set forth in the opinion of the Court of Criminal Appeals. See
47 MJ at 710.

The victim in this case testified to a period
of sexual abuse which began when she was approximately 9 years old. While
this "uncharged misconduct" of sexual abuse occurred prior to the time
encompassed by the charges before the court-martial, it was offered for
a limited purpose to show appellant’s "plan, design, or scheme." Further,
it put the victim’s testimony into context that she "felt cornered, . .
. trapped, [and] had to do what [appellant] said." With the evidence in
this posture, it cannot be said that the military judge erred in rendering
constructive force/parental control and tender-years instructions as they
related to the force elements of both rape and forcible sodomy.

We have also reviewed the content of the instructions
rendered. Constructive force, acceding to parental will, and tender years
were presented as alternatives to actual force, not as an invitation to
dispense with the necessity of finding the force element of both rape and
forcible sodomy. Thus, we agree with this conclusion of the Court of Criminal
Appeals:

Significantly, the military judge’s instructions
did not mandate a finding of parental compulsion, but merely permitted
the members to understand the implications of such conduct, were they to
find it occurred, on the elements of force and consent. SeeUnited
States v. Palmer, 33 MJ 7, 9 (CMA 1991). We find no error in the military
judge’s instructions.47 MJ at 711.

Issue II

Appellant alleges his counsel were ineffective
with respect to certain advice given in conjunction with sentencing. At
the time of trial, appellant had been "passed over twice" for promotion
and would have otherwise been eligible to apply for retirement as of December
1, 1994.

The lower court was presented with two conflicting
affidavits concerning the effectiveness of counsel’s advice to appellant
during sentencing. According to appellant, his counsel told him that if
the members did not adjudge a dismissal, he would be allowed to retire.
"I was informed by LCDR [T] that I would be allowed to retire if the members
did not dismiss me. I had no idea that there was even a possibility that
I might not be allowed to retire." Appellant’s affidavit at 2. Accordingly,
in his unsworn statement presented during the sentencing phase of the court-martial,
appellant asked the court members not to sentence him to dismissal, so
that he could retire and, therefore, be able to support his family. In
exchange, he asked the members to sentence him to a more lengthy period
of confinement than they otherwise would have. The members apparently complied
with the request. However, according to the Government, "appellant was
subsequently administratively processed at a Board of Inquiry, received
an other than honorable discharge, and was denied any retirement benefits."
Answer to Final Brief at 14.

By contrast, defense counsel asserted, through
their joint affidavit, that they had advised appellant that "a verdict
in his case which did not include a dismissal would not ensure his retirement,
but instead would be only the first step in attempting to salvage his family’s
future." Affidavit of defense counsel at 2.

In United States v. Ginn, 47 MJ 236
(1997), this Court required the Courts of Criminal Appeals to order a factfinding
hearing when faced with conflicting affidavits. However, "if the [appellant’s]
affidavit is factually adequate on its face but the appellate filings and
the record as a whole ‘compellingly demonstrate’ the improbability of those
facts, the Court may discount those factual assertions and decide the legal
issue." Id. at 248.

The standard of review of a claim of ineffective
assistance of counsel is that set out by the Supreme Court in Strickland
v. Washington, 466 U.S. 668, 687 (1984). United States v. Scott,
24 MJ 186 (CMA 1987); seealsoUnited States v. Ingham,
42 MJ 218 (1995); United States v. McCastle, 40 MJ 763 (AFCMR 1994),
aff’d, 43 MJ 438 (1996). The two-pronged test of Strickland
requires first, that appellant demonstrate that his counsel’s performance
was so deficient that he was not functioning as counsel within the meaning
of the Sixth Amendment and that counsel’s conduct "fell below an objective
standard of reasonableness." 466 U.S. at 688. Second, appellant must show
that his counsel’s "deficient performance prejudiced the defense." Id.
at 687.

In deciding the issue of whether appellant
was denied the effective assistance of counsel, the Court of Criminal Appeals
concluded that it was unnecessary to resolve the conflict in the affidavits
on the grounds that

appellant was not a seaman recruit, but rather
a lieutenant commander with 15 years of service. Without giving any consideration
to the affidavit of his two defense counsel, we find quite incredible the
appellant’s claim that he had no idea that he might not be allowed to retire,
if his sentence did not include a dismissal.47 MJ at 713.2/
The lower court supported its finding in a footnote, which averred:It was common knowledge among affected officers
in the Navy that unlike retirement eligibility based on 20 years of active
duty, TERA was and remains a highly discretionary program with the service
secretary concerned, requiring individual application, individual review,
and discretionary approval.47 MJ at 713 n.7.

The lower court’s assertion not only lacks
support in the record, but also it is undermined by documents attached
to the record reflecting the serious challenge Navy attorneys experienced
in interpreting the temporary retirement statute at issue in this case.
In short, the court below resolved the matter by imputing to this nonlawyer-appellant
a degree of familiarity with personnel law far beyond that exhibited by
experienced service attorneys, as reflected in the record of trial and
on appeal.

At issue on appeal is appellant’s understanding
of, and counsel’s advice regarding, the Temporary Early Retirement Authority
(TERA).3/
TERA supplemented 10 USC § 6323, which provided that "[a]n officer
of the Navy . . . who applies for retirement after completing more than
20 years of active service . . . may, in the discretion of the President,
be retired . . . ." In order to effect a drawdown in forces, TERA amended
the statute to provide for retirement of "officer[s] with at least 15 but
less than 20 years of service by substituting ‘at least 15 years’ for ‘at
least 20 years’" in the statute.

Correspondence in the record indicates that
the Bureau of Naval Personnel wrestled in 1993 with the question of whether
the entitlement of officers with 15 years or more of service, who were
eligible for retirement under the temporary program, would be treated in
the same manner as officers who were eligible for retirement with 20 or
more years of service under permanent law.4/
A memorandum by an Assistant Chief of Naval Personnel, dated September
22, 1993, noted that only a "20 year retirement is an entitlement" and
that "[a]n officer eligible for 20 year retirement can only be processed
to determine retirement grade." The memorandum included a detailed legal
analysis which specifically noted the "requirement to retire a retirement-eligible
officer in lieu of discharge" under the permanent law.

The memorandum from the Assistant Chief of
Naval Personnel provided the Chief of Naval Personnel with two options
for members with more than 15, but less than 20, years of service while
otherwise eligible for retirement under the temporary program: (1) treat
persons facing "potential or pending adverse administration [sic] action"
in the same manner as those with 20 or more years of service; or (2) treat
the program as unique and "disapprove" requests for retirement by persons
with "potential or pending adverse disciplinary and/or administrative action."
The Chief of Naval Personnel chose the latter option. Because the decision-making
process was generated as a result of a personnel action on another officer,
it is likely that it was treated as an internal matter, and there is nothing
in the record to indicate that this decision was widely disseminated within
the Navy in a manner that would have come to the attention of appellant.
What is most important from the perspective of the present appeal is that
the complex legal analysis accompanying the decision and the fact that
these matters were treated as options demonstrate that it was unreasonable
for the court below to presume that the average officer, particularly an
officer outside legal and personnel channels, would have known that retirement-eligible
officers with less than 20 years of service would be treated differently
from retirement-eligible officers with more than 20 years of service.

The affidavit from trial defense counsel, rather
than helping the Government, further undermines the decision of the court
below. The affidavit notes that defense counsel had been advised by the
Bureau of Naval Personnel that the policy was "pending, largely unclear
and subject to change with input from various factions within the Bureau."
The affidavit from the Bureau’s counsel simply notes that he "cannot remember
telling her that the issue was unclear and subject to change," but adds
that it took over a year to develop the policy concerning retirement of
officers facing adverse or disciplinary action under the temporary program.
Under these circumstances, the court below clearly erred in suggesting
that the law was so clear that appellant’s position is not credible.

The record of trial is consistent with appellant’s
assertion that he was informed by counsel that he would be allowed to retire
if the court did not adjudge a dismissal. Defense counsel’s questioning
of appellant during his unsworn statement focused largely on the preservation
of his retirement benefits:

DC: Okay. Would you rather have more prison
time rather than have money taken from your family?

ACCUSED: Yes, I would.

* * *

DC: If the members did not give you a dismissal
so that you could save your retirement, how would you ensure that your
family would get that money?

ACCUSED: The same reas -- the same way, direct
deposit, allotment, or, if necessary, a third deposit to administrate [sic]
it for their daily living expenses.

DC: Are you asking the members then for more
prison time so that they will limit the forfeitures or to not dismiss you
so that money can go to your family?

ACCUSED: Yes, it is [sic].

In his argument, trial counsel also indicated
a belief that appellant would be able to retire if a dismissal was not
adjudged, stating:The government respectfully requests you
sentence this accused to 40 years in prison, to be dismissed from the naval
service based on his heinous acts. He’s retirement eligible and that’s
unfortunate. His crimes, his pattern of repetitive criminal conduct over
almost four years, strips him of whatever right, if you will, he had to
retire as a naval officer from the United States Navy. . . He must be dismissed
from the service for these crimes.Significantly, trial counsel made no argument
to the members that they should dismiss appellant because he might not
be able to get his retirement benefits in any case. During her sentencing
argument, defense counsel implored the members to "protect [appellant’s]
family" by sending "him to prison for as long as you think is necessary,
add extra years if you -- to give the family money." Nothing was said during
the sentencing proceeding that indicates appellant was on notice that,
despite being adjudged no dismissal, his retirement eligibility would remain
in peril.

Considering the record as a whole and considering
that even those who administered the TERA program had difficulty in determining
whether an officer eligible for retirement under TERA should be treated
the same as an officer eligible for retirement under permanent law, it
is unreasonable to resolve this matter on the basis that appellant should
have had any knowledge about the effect of a conviction on his eligibility.
If, as he contends, presumptively competent counsel advised him that he
would be allowed to retire if a dismissal was not adjudged, it was reasonable
for appellant to rely upon that advice. The Court of Criminal Appeals should
have ordered a factfinding hearing to determine what advice appellant was
given. The failure to do so was error.

We also do not agree with the lower court that
even if counsel’s performance was deficient, appellant was not prejudiced
by his unsworn statement at sentencing. The lower court stated that

appellant received confinement for life from
these members because of the vile and despicable nature of his offenses,
not because of any calculus in his unswornstatement of trading
increased confinement for lesser forfeitures and no dismissal. Any nexus
between the claimed lack of defense counsel advice or mis-advice as to
the possibility of administrative processing and the sentence adjudged
is tenuous and speculative.47 MJ at 714. Given the court’s description of
appellant’s acts as "vile and despicable" -- and the fact that the members
adjudged a sentence that included confinement for life -- what is remarkable
about this case is the absence of a dismissal from the sentence. The most
rational explanation for the members’ failure to adjudge a dismissal in
this case is that they followed appellant’s request to give him more confinement
in exchange for no dismissal. Appellant has asserted that if he had known
his retirement would not be secure, he would not have made this request.
That assertion is sufficient to demonstrate prejudice.

The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is set aside. The record of trial is returned
to the Judge Advocate General of the Navy for submission to the convening
authority to conduct a hearing to resolve the disputed questions of fact.
United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967).

In the event that the convening authority deems
such a hearing impracticable, he or she may order a rehearing on sentence.

Upon completion of the proceedings below, the
record of trial shall be sent directly to the Court of Criminal Appeals
for review. Thereafter, the record shall be returned to this Court. Art.
67, UCMJ, 10 USC § 867 (1994).

FOOTNOTES:

1/ The Staff
Judge Advocate’s recommendation dated January 23, 1996, represents that
appellant’s service record indicates that his military service began on
October 8, 1978.

2/
Notably, despite its protestations that it had not considered defense counsel's
affidavit, the lower court summarized the content of that affidavit in
a footnote to the opinion. 47 MJ at 713 n.6.

3/
The Temporary Early Retirement Authority (TERA) was enacted on October
23, 1992, by § 4403 of Public Law No. 102-484, 106 Stat. 2702. It
is set out in full as a note to 10 USC § 1293.

Section 4403(d) provides: "The
Secretary of each military department may prescribe regulations and policies
regarding the criteria for eligibility for early retirement by reason of
eligibility pursuant to this section . . . . Such criteria may include
factors such as grade, years of service, and skill."

Pursuant to this authority, NAVADMIN
093/95 was promulgated by message dated 25 Apr 95 (sentence proceedings
were in Sept 95), subject: Temporary Early Retirement Program for Officers.
The preamble states: "This NAVADMIN announces a temporary early retirement
program for eligible officers in FY-96. It is not an entitlement . . .
."

Paragraph 7 provided additional
eligibility requirements: "B. An officer who is under adverse disciplinary
. . . action under the [UCMJ] . . . may not apply for early retirement
until the action is resolved in favor of the member."

4/
Subsequent to appellant's court-martial and the attorney-client discussions
at issue in the present appeal, new legislative authority was created to
permit administrative separation of an officer facing long-term confinement,
even if the officer's sentence did not include dismissal. National Defense
Authorization Act for Fiscal Year 1996, Pub. L. No. 104-106, § 563(b)(1),
110 Stat. 325 (Feb. 10, 1996) (codified in pertinent part at 10 USC §§
1161(b)(2) and 1167). This provision was intended to address circumstances
under then-existing law in which a person could continue to remain on active
duty, drawing pay and allowances, despite a sentence to long-term confinement.
See S. Rep. No. 112, 104th Cong., 1st Sess. 245-46 (1995).

GIERKE, Judge (dissenting):

The fourth principle of United States v.
Ginn, 47 MJ 236, 248 (1997), controls this case. The record as a whole
and the appellate filings "‘compellingly demonstrate’ the improbability"
of appellant’s post-trial assertions.

Appellant says his counsel never mentioned
the possibility of an administrative discharge, and that they unequivocally
told him he would be allowed to retire if he were not sentenced to a dismissal.
In a joint affidavit, his counsel say that they explained the administrative
elimination process and that they told him that his retirement eligibility
would turn on the Navy’s interpretation of the phrase "resolved in favor
of the member." The affidavit from Capt Morgan, the Assistant Legal Counsel
for Navy BUPERS, corroborates defense counsel’s affidavit in some respects.
Although Capt Morgan is vague as to the dates on which he consulted with
appellant’s defense counsel, his affidavit is consistent with and corroborates
the statement in LCDR Tinker’s affidavit that BUPERS’ interpretation of
the phrase "resolved in favor of the member" was unclear at the time appellant’s
court-martial was pending.

I agree with the court below that appellant’s
assertions are "quite incredible," 47 MJ at 713, for three reasons. First,
the court below concluded that the discretionary nature of TERA was common
knowledge. The majority dismisses the lower court’s conclusion because
it "lacks support in the record." The majority cites no authority for the
proposition that a Court of Criminal Appeals may not make a factual finding
regarding matters of common knowledge in the Navy. It recites no basis
in law or fact for rejecting the court’s conclusion, other than to point
to the complexity of the issue. The members of the court below were all
senior officers on active duty at the time in question and are much better
situated than this Court to say what was common knowledge in the Navy at
the time. The court below did not dispute that TERA was legally complex;
it found only that it was common knowledge that it was discretionary.

Second, appellant had previously applied for
early retirement under TERA, indicating that he was generally familiar
with the policies and procedures for requesting early retirement under
TERA.

Third, I think it incredible that two military
lawyers would conduct extensive research and investigation into the applicability
of TERA to appellant, and then tell appellant that he could count on retiring
if he were not dismissed. Unlike most claims of ineffective representation,
appellant does not assert that his lawyers were negligent or incompetent;
he asserts that they lied to him.

In my view, it takes more than a bare assertion
to impugn the professional competence of counsel. Appellant’s counsel had
nothing to gain by lying to him. Appellant has everything to gain by this
incredible attack on his counsel.

CRAWFORD, Judge (dissenting):

I agree with the dissent of Judge Gierke and
write separately to point out pertinent statutory and regulatory provisions.
Both regulation and statutes support the advice given to appellant that
he might not be allowed to retire even if his sentence did not include
a dismissal. Additionally,10 USC §§ 1161(b)(2) and 1167(enacted after appellant’s trial), and its predecessors, which
have existed for tens of years,*
permit the President to dropan officer from the rolls if the member
was sentenced to confinement.The statutes are implemented by Naval
Military Personnel Manual and Secretary of the Navy Instruction 1920.6A.
It is unfortunate that the majority will not give judicial deference to
the court below, a factfinding court, Art. 66(c), Uniform Code of Military
Justice, 10 USC § 866(c)(1994), as to their finding that it is "incredible
[Davis]... had no idea that he might not be allowed to retire, if his sentence
did not include a dismissal." 47 MJ 707, 713. If there is any question
regarding implementation of these statutes and the Navy instruction, this
Court has the option of remanding the question to the Court of Criminal
Appeals, which would be more familiar than this Court with the implementing
instructions and regulations.

FOOTNOTE:

*Cf. Clinton
v. Goldsmith, 119 S.Ct. 1538, 1541 n.1 (1999). This Court lacked jurisdiction
to enjoin the President and other military officials from dropping Goldsmith,
who was tried in 1994, id. at 1541, from the rolls under 10 USC
§ 1161(b)(2).